New Georgia law reforms process for exempting persons with intellectual disability from capital punishment

Georgia’s administration of capital punishment has long had a unique place in the history of the death penalty in the United States.  But, as detailed in this local article, one unique aspect of its modern death penalty process changed this week to be more in line with other state capital processes.  Here are the details:

HB 123 lowers the legal threshold for proving a person has an intellectual disability in the courtroom.  Prior to the bill being signed, it had to be proven “beyond a reasonable doubt,” the highest threshold for evidence.  Now, under HB 123, it must be proven “by preponderance of evidence,” a much lower standard of proof.

Georgia first outlawed capital punishment for people with proven intellectual disabilities in 1988, but the standard of proof remained among the most difficult in the nation to achieve.  A 2002 decision from the U.S. Supreme Court outlawed capital punishment for people with proven intellectual disabilities nationwide, but left it up to individual states to determine the threshold for proving a disability in court.  Until Tuesday, Georgia remained the only state where it must be proven “beyond a reasonable doubt.”…

The new law also moves the proceeding to determine intellectual disability ahead of a formal trial, not during it, meaning a person’s mental capacity is determined right away….

The law is not retroactive. Georgia currently has 34 inmates remaining on death row, and none of them are eligible for appeal under HB 123.  Unlike some bills signed by the governor which take effect July 1, HB 123 became active law when Kemp signed it Tuesday.

The law’s shift to a pretrial determination of intellectual disability means that now in Georgia, as is the case in all other states, it will be for a judge to determine whether a defendant is intellectually disabled rather than being determined by a jury while assessing guilt or innocence.